Case - Newns v British Airways plc

[1992] IRLR 575, Court of Appeal - Lord Hendy QC

B.A. decided to hive off part of its business to a subsidiary company and gave its employees 15-days notice of the transfer of their employment. The TGWU and N sought an interlocutory injunction restraining B.A. from transferring the contracts of employment until consultation had taken place. The judge at first instance refused to grant the injunction and N appealed, seeking a temporary injunction until the hearing of the appeal. The judge granted relief only until such time as N would be able to make an application to the Court of Appeal for an injunction pending appeal.

Held, dismissing the application for an injunction pending appeal, that N did not have an arguable case for an interlocutory injunction and therefore an injunction pending appeal would not be granted. N did not have an arguable case that the transfer of his contract of employment was a repudiatory breach of contract which he was entitled to restrain. Whilst at common law an employer could not transfer an employees's contract without his consent, the Transfer of Undertakings Regulations 1981 provides for a statutory novation of the contract and there was therefore no repudiatory breach as a result of a transfer.

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